TMI Blog2018 (7) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... his computation at ₹ 3,7,607/-. The assessee has unnecessarily included a sum of ₹ 88,000/- in the cost of acquisition for taking benefit of indexation. He failed to substantiate the inclusion of ₹ 88,000/- in the cost of acquisition. We partly allow the appeal of the assessee. Assessment of long term capital gain is to be excluded from the assessment year 2009-10. But it is to be taxed in the assessment year 2011-12. The ld.AO shall give necessary effect accordingly. Decided in favour of assessee partly - ITA No. 1750/Ahd/2016 - - - Dated:- 12-7-2018 - Shri Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member Assessee by : Shri M.K. Patel Revenue by : Shri V.K. Singh, Sr.DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding various expenditure in the cost of acquisition. However, the ld.AO on re-appreciation calculated the long term capital at ₹ 5,19,871/-. He did not allow exemption under section 54 on the ground that the assessee has failed to produce purchase deed of new property. 4. Appeal to the CIT(A) did not bring any relief to the assessee. The ld.counsel for the assessee contended that the assessee made payment of more than ₹ 29 lakhs to PIPL . He drew our attention towards receipts and submitted that these payments were made through account payee cheque for purchase of flat No.A/304. Somehow builder failed to construct the flats and ultimately money has been returned to the assessee in the assessment year 2011-12. He contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction of building by the builder and return of money disentitle him for exemption under section 54 of the Act. At this stage, we deem it appropriate to take note of both circulars, which read as under: Subject: Deductions from Capital gains u/s. 54/54F of the Income tax Act - Clarification regarding. 1. Attention is invited to Board's Circular No, 471, dated 15-10-1986. It was clarified therein that cases of allotment of fiats under the Self-Financing Scheme of the Delhi Development Authority (DDA) should be treated as cases of construction for the purposes of sections 54 and 54F of the Income-tax Act. The Board has since received representations that even in respect of allotment of flats/houses by co-operative societies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of one year before or after the date on which the transfer took place and in case of construction of a house, the benefit is available if the investment is made within three years from the date of the transfer. 2: The Board had occasion to examine as to whether the acquisition of a flat by an allottee under the Self-financing Scheme of the Delhi Development Authority amounts to purchase or is construction by the D.D.A. on behalf of the allottee. Under the Self-financing Scheme of the Delhi Development Authority, the allotment letter is issued on payment of the first instalment of the cost of construction. The allotment is final unless it is cancelled or the allottee withdraws from the scheme. The allotment is cancelled only u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Before us, the ld.DR pointed out that as per law the time limit to reopen the assessment for A.Y.2011-12 might have expired, and the assessee may escape from paying tax in this assessment year also. The ld.counsel for the assessee drawn to our notice provisions of section 153(6) as well as Explanation 2 appended to this section. He contended that a mechanism has been provided in this section whereby if some directions about taxability of a particular amount in a particular period are being issued, then there is no time limit for giving effect to those directions. At this stage, we deem it appropriate to take note of sub-section (6) of section 153(6) along with Explanation 2, which reads as under: Section 153(6): ..... (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id order; or (b) any income is excluded from the total income of one person and held to be the income of another person, then, an assessment of such income on such other person shall, for the purposes of section 150 and this section, be deemed to be one made in consequence of or to give effect to any finding or direction contained in the said order, if such other person was given an opportunity of being heard before the said order was passed. . 7. Taking into consideration the above provision as well as the stand of the assessee that he has no grievance if the long term capital gain be taxed in the assessment year 2011-12 on being refunded to him by the PIPL . We direct the AO to take action in the assessment year 2011-12 and as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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